Immediate Expropriation in Turkish Law

Date:18/01/2015Att. Levent Cengizlevent.cengiz@cengiz.av.trImmediate Expropriation in Turkish LawI. IntroductionThe expropriation procedure in Turkish law is conducted in accordance with Article 46 of the Constitution and Law No.2942 on Expropriation. In exceptional cases where there is a danger of disruption in public services, the method of immediate expropriation stipulated in Article 27 is employed. In this article, brief information regarding immediate expropriation will be provided. II. The Legal Grounds of Immediate ExpropriationImmediate expropriation is an extraordinary method that can be employed under 3 circumstances. The first one is the need for national defense based on Law on National Defense Obligations. Secondly, it can be applied if it is required because of the extraordinary cases stipulated in special laws. For instance, pursuant to the second paragraph of Article 6 of Law on Transformation of Areas Under Disaster Risks, in case a decision with 2/3 majority of the owners is not made, the immovable property in question can be immediately expropriated. Finally, this method can be adopted, if a cabinet decree is issued in case of an emergency. For example, it was decided that the immovable properties in Ortaköy and surrounding villages of Kocaali district in Sakarya shall be expropriated according to Article 27 for the purpose of the construction of Melen Dam, which is being constructed in order to solve the water-related problems of Istanbul. III. The Procedure within the Scope of Immediate ExpropriationThe seizure of the immovable property within the shortest time by the Administration is the purpose of immediate expropriation. For this reason, the procedure pursuant to Article 27 consists of (i) the appraisal of the immovable property, (ii) depositing the amount to the owner’s bank account and (iii) the seizure of the property. In this way, the expropriation can be conducted in a time-saving manner by concluding other procedures later such as the submission of the claims and defenses, setting a hearing date and the objection against the expert report. Upon request of the respective administration, the value of the immovable property in question shall be appraised by the experts as per the provisions of Article 10 and 15 within 7 days. Seizure shall be made after the amount specified in the invitation and the announcement to be made in accordance with Article 10 herein is deposited by the Administration in the name of the owner. It should be noted that the property can be seized provided that the amount is deposited to the owner’s bank account.[1]It should also be noted that the procedure defined in Article 27 is limited to the appraisal of the property; therefore, it is not the final judgment of the court that resolves the conflict.[2] In this respect, the judgment cannot be appealed by the parties as the appraisal is considered only as a perpetuation of evidence.[3] Thus, the amount appraised by the experts is not the actual expropriation fee. The actual fee is to be appraised in the price determination suit to be filed in accordance with Article 10.[4] For this reason, the court must only conduct the appraisal procedure and must not rule to transfer the ownership of the property to the Administration.[5] The transfer of ownership shall take place either with the agreement of the parties or price determination suit to be filed. According to Article 15/last paragraph, the date on which the documents are submitted to the court by the administration shall be taken as the basis for the price determination made by the experts.[6]There is no specific time limit regarding the commencement of the regular expropriation procedure after immediate expropriation; however, it is specified in the Supreme Court decisions that the price determination suit must be filed within a “reasonable time” after immediate expropriation and it is also stated that if the suit is not filed within a reasonable time, the owner is entitled to file a lawsuit to receive compensation against the Administration arising from confiscation without expropriation.[7] Furthermore, it is indicated in some Supreme Court decisions that the reasonable time is 6 months.[8]IV. Related IssuesIf the immediate expropriation is based on a cabinet decree, an action of annulment of the expropriation proceeding can be filed before administrative courts. In this case, the cabinet decree should be parallel with other two circumstances defined in Article 27, as indicated above.[9]It is not regulated whether the negotiation procedure must be performed after immediate expropriation. On the one hand, it is ruled in a decision of the assembly of civil chambers that Article 27 cannot be interpreted in a manner that the negotiation procedure defined in Article 8 is ignored.[10]Hayta supports this view.[11] On the other hand, it is ruled in other Supreme Court decisions that the negotiation procedure is not mandatory after immediate expropriation.[12] Given the Supreme Court decisions, the negotiation procedure in immediate expropriation is arbitrary.Pursuant to Article 10, in case the price determination suit is not concluded within 4 months, legal interest shall be accrued to the amount effective from the end of the period in question. Accordingly, it is ruled in the Supreme Court decisions that in case the price determination suit filed after the immediate expropriation is not concluded within 4 months and if there is a price difference between the price determination suit and immediate expropriation in favor of the owner, legal interest shall be accrued to the difference amount effective from the end of the 4 month period.[13] However, Çınar is of the opinion that, as there is no specific time limit regarding the commencement of the regular expropriation procedure after immediate expropriation, legal interest should be accrued effective from the date of immediate expropriation instead of the end of the 4 month period.[14] In addition, the bank should be instructed by the court to pay the difference amount to the owner, as there is no need for the finalization of the court decision.[15]Pursuant to Article 20, the Administration is entitled to ask the execution officer to evacuate the expropriated property registered in the name of the Administration. As there is a seizure and not registration in immediate expropriation, whether the immovable property seized by the Administration can be evacuated through the execution office is not clear. However, is it indicated in the Supreme Court decisions that the immovable property seized via immediate expropriation can be evacuated.[16] Another issue regarding the immediate expropriation is the evacuation of the cultivated lands. It is indicated in Article 20/last paragraph that in cases when it is not possible to wait until the harvest time, the Administration may request the evacuation of the land provided the cost of crops is indemnified as appraised. Therefore, if the cultivated land is needed to be evacuated because of immediate expropriation before harvesting crops, the cost of crops should be paid to the owner.V. ConclusionImmediate expropriation is an extraordinary method that can be employed under exceptional circumstances. As the purpose of this procedure is the seizure of the immovable property within the shortest time by the Administration, the procedures other than appraisal are concluded later. Since the appraisal is considered only as a perpetuation of evidence, the judgment cannot be appealed by the parties. The actual fee is to be appraised in the price determination suit to be filed in accordance with Article 10. Considering the Supreme Court decisions, the negotiation procedure in immediate expropriation is arbitrary. Furthermore, in case the price determination suit filed after the immediate expropriation is not concluded within 4 months, legal interest shall be accrued to the difference amount effective from the end of the 4 month period. Finally, the immovable property seized via immediate expropriation can be evacuated by the Administration.[1] 5th civil chamber of the Court of Cassation (Supreme Court), decision dated 20/02/2004 and numbered 2004/1588.[2] Decision dated 04/02/2008 and numbered 2008/834. See also decision dated 25/01/2007 and numbered 2007/316.[3] Decision dated 07/12/2006 and numbered 2006/13602. See also decision dated 06/04/2004 and numbered 2004/4239; decision dated 03/11/2003 and numbered 2006/13602.[4] Decision dated 10/05/2010 and numbered 2010/8199.[5] Decision dated 12/03/2007 and numbered 2007/3023.[6] Decision dated 15/06/2006 and numbered 2006/7378.[7] Decision dated 25/04/2005 and numbered 2005/4877. See also decision dated 16/04/2007 and numbered 2007/4879; decision dated 19/09/2006 and numbered 2006/9179; decision dated 25/04/2005 and numbered 2005/4877 (Bekir Yıldırım, Honorary President of the 5th Civil Chamber of the Court of Cassation, Expropriation and Confiscation Without Expropriation Cases, 2013 - Yetkin Publications, 2nd Edition, p. 672-677 - [Bekir Yıldırım, Yargıtay 5. Hukuk Dairesi Onursal Başkanı, Kamulaştırma ve Kamulaştırmasız El atma Davaları, 2013 - Yetkin Yayınları, 2. Baskı, sf. 672-677]).[8] Decision dated 30/10/2008 and numbered 2008/13436.[9] 6th chamber of the Council of State, decision dated 30/05/2013 and numbered 2012/6974. See also decision dated 19/03/2014 and numbered 2013/5072.[10] The assembly of civil chambers, decision dated 06/07/2011 and numbered 2011/468.[11] Mehmet Ali Hayta, Legal Adviser of General Directorate of the State Hydraulic Works, 2014 - Adalet Publications, 2nd Edition, p. 369 - [Mehmet Ali Hayta, DSİ Genel Müdürlüğü Hukuk Müşaviri, 2014 - Adalet Yayınevi, 2. Baskı, sf.369].[12] Decision dated 04/03/2010 and numbered 2010/3270. See also decision dated 28/10/2008 and numbered 2008/13306; decision dated 21/02/2007 and numbered 2007/2079 (Bekir Yıldırım, Ibid, p. 666-675)[13] Decision dated 26/02/2014 and numbered 2014/5177.[14] Turan Çınar, Expropriation Cases, 2010 - Adalet Publications, 2nd Edition, p. 836 - [Turan Çınar, Kamulaştırma Davaları, 2010 – Adalet Yayınevi, 2. Baskı, sf.836].[15] Decision dated 20/02/2004 and numbered 2004/1448.[16] Decision dated 03/05/2012 and numbered 2012/14929.